What do Filipino welders working in Louisiana and Jamaican dishwashers working on Cape Cod have in common?
“One set of regulations covers them both,” said Matthew Lee, a corporate immigration attorney who helps several businesses on the Cape process the legal paperwork to help foreign workers get H2B visas.
Those regulations were “significantly changed” to stem labor violations with manufacturing plants in other parts of the country, with the changes taking effect October 1, 2015, said Lee, a partner of Toss & Lee LLC, a human resource law firm with offices in Centerville, Boston and London.
(See last year’s story, Hiring Season On Cape Cod)
“There is a long history of manufacturing businesses in other parts of the country bringing in hundreds of thousands of workers, and they don’t pay and they don’t comply with labor laws,” said Lee.
Because of this, said Lee, for the first time since 2009, the Department of Labor changed the regulations on bringing in H2B workers. There are 750 pages of regulations, said Lee, making it “incredibly onerous” for employers to get needed workers.
“It was not intended to go after the hospitality industry and their seasonal needs,” said Lee. But because there is only one set of regulations covering all H2B workers, the rules affect all, including those hiring, for instance, dishwashers from Jamaica to work seasonally on Cape Cod.
Seasonally Challenged & Geographically Challenged
William Zammer, owner of Cape Cod Restaurants Inc., which operates four restaurants on the Cape, said he brings in 105 workers from Jamaica but the new regulations have pushed their arrival back two to three weeks.
Lee said the typical delay for his 12 clients is going to be four to six weeks.
Zammer said that he cannot open two of his four restaurants because of the delay. Zammer described the changes to regulations as “all bullshit stuff,” and said that he has proven that he has tried to find Cape workers, as well as off-Cape American workers with no success.
“I can’t find them,” he said, citing Roxbury, Puerto Rico and the US Virgin Islands among places he has looked for workers.
“I won’t be in business if I don’t have them.” – William Zammer, owner of four Cape restaurants, speaking of his foreign workers.
Zammer said he understood that the idea of the regulations was to “protect American jobs from being taken by foreign workers, but we’re seasonally challenged and geographically challenged.”
The delay of opening two restaurants, said Zammer, will affect 36 American workers who expected to start back to work in early April.
As Lee said, “If you need 50 dishwashers, and 25 can’t come in, you can’t open.”
Ken Smith, vice president of Red Jacket Resorts, which has five properties on the Cape and hires 300 seasonal employees, said he relies on the J1 visa program, for students, rather than the H2B program.
But Smith said the company also operates a resort in North Conway, New Hampshire and does hire H2B workers, specifically lifeguards.
Smith said Lee helped him navigate the system, which he described as “cumbersome and bureaucratic,” for the North Conway lifeguard hires, which came from South Africa.
“It’s hurry up and wait,” said Smith of the process.
Explaining The Delay
According to Lee, one change in the regulations, approved in April and taking effect in October, cut the timeline for the H2B process by 30 days, leaving no room for leeway.
“Now you have 90 days to get through a process that takes 90 days,” said Lee. “Before you had 120 days to get through a 90-day process.”
Lee said that there was “such an outcry” about the change in the process, that Congress in an omnibus budget bill of December 2015 changed some terminology to help businesses, but ended up “significantly changing the regulations,” he said.
Asked about the specific changes, he said, “it’s not going to make sense to you,” adding, “it’s not sexy stuff.”
But the new changes in December to regulations passed in April and taking effect in October, confused the Department of Labor, said Lee. “Congress came in and thought they were doing something good… and then the Department of Labor, trying to figure out their own regulations, went into a tizzy.”
To top that off, the computer systems dealing with all of this went down in January for three weeks, said Lee.
One other factor, said Lee, was that “when Congress changed those terms, one of the terms they changed was workers in the U.S. for the last three years can come back and not count against the 66,000 cap” of H2B visas.
So, after the Department of Labor created new rules, shortened the timeline, and then Congress changed the rules confusing the Department of Labor and everyone, and after the computers went down, there was “a sevenfold increase in the number of applications,” said Lee.
Zammer said it costs “almost $1,500 per worker to bring these workers in.”
With all of that, Zammer said he has no choice but to go through the process. “I won’t be in business if I don’t have them,” he said of his foreign workers.